mr. stillman, dna and discarded evidence in criminal cases

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The collection of discarded bodily tissue by police raises a number of difficult issues. We recognize that police should be permitted tocollect such information, where it is relevant, if it is found as the result of the execution of a regular search. But it is our view that thepolice should be prevented from compiling data banks of DNA information on persons drawn from discarded body tissue.It is our position that DNA information should be banked only for those convicted of indictable offences. Banking information on awider range of persons, and possibly drawing on discarded tissue for this purpose, will bring the administration of justice into disreputeby extending the level of police surveillance of law abiding citizens to too high a level and by putting too many innocent people underthe net of police suspicion. As well, such practices will undoubtedly encourage police to operate on the principle that everyonetangentially related to an investigation is a suspect until proven innocent. We want our law enforcement officials to operate on adifferent principle, namely, that people should be treated as though they are innocent by law enforcement authorities at least until thereis some good reason to bring them under suspicion.The BCCLA recommends that the police should be statutorily prevented from generally collecting discarded bodily tissue for thepurposes of banking DNA information. The exception to this is where such tissue is found at a crime scene and police have some reasonto think that it belongs to the perpetrator of the crime. 3A similar conclusion was recently reached by the Australian Law Reform Commission when they proposed a newcriminal offence for the unauthorized, non-consensual genetic testing of biological material, characterizing it as abreach of information privacy – an intrusion on basic human dignity and autonomy:Testing can reveal information about the present and future health of an individual, and individual’s identity, or his or her parentage orkinship … The possible uses of the information derived from non-consensual testing may also give rise to harm, including harm causedby … the use of genetic information … for discriminatory purposes … [to determine] physical and behavioural characteristics … by policein criminal proceedings … 4While it is true that the results of genetic testing can contain a great deal of information about a person, from eyeand skin colour to information about a person’s behaviours and predispositions to diseases, 5 law enforcement officialsare not interested in predicting what disease an individual may or may not acquire during their life when analyzingdiscarded DNA. Nevertheless, none of the loci used for standard identification in forensic DNA analysis have beenfound to contain predictive medical information. 6While the new DNAWitness Retinome assay being marketed to the police by DNAPrint in Ontario canprovide investigators with the ability to construct a physical portrait of a suspect, from ancestry to eye colour (and theyare working on hair colour, skin pigmentation and other physical characteristics that can be identified through geneticmarkers), 7 they do not use the same loci as the forensic DNA technology currently being used by policing services.In fact, an actual forensic DNA profile is meaningless to almost 100 percent of the population, whether it isexpressed as a chain of amino acids (i.e. G-A-T-T-A-C-A), its numerical value (i.e. 8,9; 11,13; 27,28; 12,14), or the x-ray(“autorad”), dot blots or gel plates on which it was developed. Even then, the information is innocuous and has nomeaning without something with which to compare it, or some kind of database or directory in which to look it up, –something to which the general public and the police simply do not have access.While leaving DNA in a public place is often unavoidable (unlike the ways in which a person can shred his or herpersonal papers or burn garbage), so long as the police find DNA at a crime scene and have some “good reason tobring [the suspect] under suspicion”, the collection of his/her abandoned DNA poses little problem for lawenforcement or the courts. So long as the State only looks at those markers suitable for comparison to crime sceneDNA, and not the genetic information as to their medical or psychological make-up, or for some discriminatory orprejudicial purpose, abandoned or discarded DNA should be treated no differently than household garbage.II. R. V. STILLMANR. v. Stillman 8 is the leading case from the Supreme Court regarding the use of discarded items by a suspect for DNAanalysis. Although this case dealt with discarded items while suspects in police custody, the general statements made by345678British Columbia Civil Liberties Association, DNA Matching for Criminal Identification Purposes, on-line:British Columbia Civil LibertiesAssociation Newsflash < http://www.bccla.org/positions/privacy/94dna.html>Ausl., Commonwealth, Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report No. 96)(Canberra: Government of Australia, 2003) at 359-374.Brian Edy, Privacy Handbook for Canadians: Your Rights and Remedies (Calgary: Alberta Civil Liberties Research Centre, 2002) at 311-12.D.H. Kaye, Science Fiction and Shed DNA: Draft publication (Centre for the Study of Law, Science and Technology, Arizona State University,2006). Also see John M. Butler, Forensic DNA Typing: Biology, Technology and Genetics of STR Markers, 2d ed. (London: Academic Press, 2005),and D.H. Kaye, “Two Fallacies About DNA Databanks for Law Enforcement”, (2001) 67 Brooklyn L.R. 179 at 187-188.See DNAPrint Genomics home page, on-line: R. v. Stillman [1997], 1 S.C.R. 607.
the Court with respect to abandoned property are helpful in determining what police can do when suspects are not incustody.A. BackgroundOn the evening of April 12, 1991, a group of teenagers gathered attended a party in the woods near Oromocto, NewBrunswick, where they drank beer and wine and shared some drugs. At dusk, 17-year-old William Stillman and 14-year-old Pamela Bischoff, left the party. Bischoff was never seen alive again. When Stillman arrived home later thatnight he was cold, shaking, and wet from the upper thighs down. He was cut above one eye, and had mud and grasson his pants.Six days later Bischoff’s body was found in the Oromocto River a few hundred metres from where she was lastbeen seen by her friends. The time of death was determined to be the evening of April 12, 1991, shortly after she leftthe party with Stillman. Witnesses subsequently reported seeing Bischoff near where she was found with a malecompanion and Stillman was positively identified walking away from the area with mud on his pants shortly thereafter.An autopsy revealed that Bischoff died as a result of a wound or wounds to the head. Semen was found in hervagina and a human bite mark had been left on her abdomen.Stillman was arrested on April 19, 1991, and was requested to provide bodily samples, including hair and teethimpressions for comparison to the semen and bite marks found at the scene. Stillman refused to provide any samplesor to give any statements. However, once his lawyers had left the police station, officers took, under threat of force,scalp and pubic hair samples and plasticine teeth impressions. In addition, the police seized a tissue he had used toblow his nose and which he threw in the wastebasket at the police station. The tissue was subsequently used for DNAtesting.Stillman was released after questioning but was arrested again several months later after DNA analysis confirmedhe had raped and killed Bischoff.At trial the Crown relied heavily on the DNA and dental evidence. While the trial judge found that the hairsamples and teeth impressions were collected in a manner that infringed his Charter rights, he found that it was realevidence that existed independent of the Charter violation and admitted the evidence. In addition he also held thatthe police had the right to seize the samples as incident to a lawful arrest. Furthermore, the judge held that the seizureof the tissue from the wastebasket was not a search as Stillman had abandoned it and thus ceased to have a reasonableexpectation of privacy in it.B. Compelled Samples ExcludedStillman was subsequently convicted by a jury of first-degree murder and sentenced to life imprisonment with noeligibility for parole for eight years. A majority of the New Brunswick Court of Appeal upheld the conviction.However, on appeal to the Supreme Court of Canada, it was held that the common law power of search incidental toarrest was not so broad as to encompass the seizure of bodily samples. As such Stillman’s right to be free fromunreasonable search and seizure pursuant to s. 8 of the Charter was seriously violated and the evidence was excluded:It has, for a great many years, been considered unfair and indeed unjust to seek to convict on the basis of a compelled statement orconfession … Similarly, to compel an accused to use his body or to provide bodily substances in order to incriminate himself wouldgenerally render the trial unfair. This is so because the compelled production of bodily parts or substances is just as great an invasion ofthe essence of a person as is a compelled conscripted statement. The unauthorized use of a person's body or bodily substances is just asmuch compelled ‘testimony' that could render the trial unfair as is a compelled statement. 9Furthermore, the majority held that the taking of the bodily samples also contravened s. 7 of the Charter since itviolated the right to security of the person in a manner not consistent with the principles of fundamental justice. Thetaking of these bodily samples was the ultimate invasion of privacy as it breached the sanctity of the body – somethingthat is essential to the maintenance of human dignity:Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquelytheirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy…It is repugnant to fair-minded men and women to think that police can without consent or statutory authority take or require an accusedto provide parts of their body or bodily substances in order to incriminate themselves. The recognition of the right to bodily integrityand sanctity is embodied in s. 7 of the Charter which confirms the right to life, liberty and the security of the person and guarantees theequally important reciprocal right not to be deprived of security of the person except in accordance with the principles of fundamental9Ibid. at para. 86.
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